The law and the press: a not always civil partnership

In a recent High Court decision two major news organisations were found in contempt of court for their coverage of a major criminal trial.

Coming just five days after the latest of the ICLR Encounters, in which much of the panel discussion centred on media coverage of court proceedings, it only serves to underline how topical and relevant is this series of discreet intelligent panel debates about legal concepts and how we write about them.

The case of Her Majesty’s Attorney General v Associated Newspapers Ltd and MGN Ltd [2012] EWHC 2029 (Admin) concerned the coverage by two national newspapers of the trial of Levi Bellfield before Wilkins J and a jury at the Central Criminal Court (Old Bailey) in May and June 2011. Bellfield was tried and, on 23 June, convicted of the kidnapping and murder of Milly Dowler, aged 13, on 21 March 2002. (It will be recalled that the disappearance of Milly Dowler played a key role in the News of the World phonetapping scandal.)

But Bellfield was also being tried for the attempted kidnap of another girl, Rachel Cowles, in relation to which the jury had not, that day, reached a verdict. Nevertheless, that evening the broadcast media, and the following morning the print media carried extensive coverage of the murder verdict. The two defendant newspapers, the Daily Mail and the Daily Mirror, included in that coverage information about Bellfield that had not previously been put before the jury, and though some of it had also been put out by the broadcast media, it was alleged that their publication created a “substantial risk that the course of justice” in the remainder of the trial “would be seriously impeded or prejudiced”. After the judge had discharged the jury on the basis that the “avalanche” of adverse publicity made the continuation of the trial impossible, the Attorney General brought proceedings under section 2(2) of the Contempt of Court Act 1981.

The issue before the High Court was essentially one of fact (the law is well established and was common ground), namely (a) whether there had been a substantial risk of serious prejudice by the publication of the articles in the newspapers, given what had already been put before the jury about Bellfield in the course of the trial and the jury’s decision to convict for the kidnap and murder of Milly Dowler; and (b) whether what had already been published by the broadcast media meant that the publication in the newspapers did not give rise to any further substantial risk of prejudice.

The court held that the terms in which the articles were written did significantly exacerbate the risk of serious prejudice, notably by drawing attention to Bellfields sexual interest in and depraved conduct to young girls, which went way beyond what they had already been told or what had been broadcast. Accordingly, the defendant newspapers were found in contempt of court and the Attorney General was invited to make submissions on the appropriate penalty. The case is fully discussed on the UK Human Rights Blog.

The case highlights the often uneasy relationship between the media and the courts.

There is inevitably a tension between the need for the courts to administer justice fairly, which depends on jurors now being swayed by prejudicial coverage of ongoing cases by the media, and the media’s desire, and indeed duty, to provide fair and accurate reports of proceedings in open court and, where necessary, draw attention to matters of genuine public interest.

One of this country’s most basic human rights, first recognised in the Magna Carta signed by King John at Runnymede in 1215, is the right to a fair trial. This is now enshrined in article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, scheduled to the Human Rights Act 1998. Article 10 of the same Convention respects the freedom of expression on which the media rely for their right to cover proceedings which, to ensure fairness, must be conducted in open court.

But does the fact that the proceedings are open to the public mean that we should let cameras film them, so the public can scrutinise them without physically attending court? For the truth of the matter is that, while the courts sit in public, the public do not necessarily sit in court.

Obviously, there is more of an issue where the courts don’t sit in public, or where their proceedings cannot be reported, whether by reason of the need to respect rights of privacy, or for reasons which are themselves too sensitive to disclose, and sometimes the subject of so-called super-injunctions.

Secret hearings, or secret evidence, intended to protect the delicate co-operation between secret services and the sharing of intelligence between nations, necessarily involve an element of unfairness to those involved in the trial. They do not enjoy the full article 6 (Magna Carta) protection. How far should that infringement be allowed to stretch in the name of some greater public benefit in security?

Another question is the extent to which the reforms introduced in the Defamation Bill will strengthen the protection afforded by article 10 freedom of expression to serious public debate about science and prevent alleged abuses such as “libel tourism” (a kind of forum shopping).

All these matters were touched on in the latest ICLR Encounters panel discussion, entitled Justice on Trial, which took place in the Old Council Chamber at the Law Society on 10 July. The panellists were (on the right in the picture)

Matthew Ryder QC, a barrister from Matrix chambers with a track record of dealing with controversial cases and (on the left) Martin Beckford, a journalist from the Daily Telegraph with a track record of writing about controversial cases.

The discussion was umpired with judicial impartiality by Joshua Rozenberg (centre), a widely respected legal correspondent who currently presents BBC Law in Action.

You can follow the discussion on the ICLR Encounters page, where an edited film of the event will shortly be available.